Defence Amendment Bill [B6-2008]: deliberations

11 June 2008

Chairperson: Mr F Bhengu (ANC)

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Meeting Summary

TheCommittee once again considered the Defence Amendment Bill, and reiterated its concerns and confirmed its dissatisfaction with the lack of useful input from the Department of Defence. They regretted the failure of the Department to address most of their major concerns, which had now brought the Committee to the point of being unable to pass the Bill in its current form. There was consensus that a total redrafting of the Bill was necessary and it could therefore not be passed in the current sitting.

Apart from the specific concerns of the Committee that had not been addressed, it was clear that the plight of the ordinary members of the SA National Defence Force had not been considered by the Department or the management of the Defence Force. Grave concerns were again expressed as to the efficacy of the management of the Defence Force and the view was expressed that their levels of efficiency should first be improved before any new legislation was passed. There was doubt as to whether the current management would be able to implement the new Bill, if it was to be enacted.

The Chairperson undertook to ask for a closed briefing with the Department to resolve this issue.

Meeting report

Defence Amendment Bill (the Bill): Continuation of deliberationsThe Chairperson expressed regret that Mr January Masilela, Defence Secretary, could not be present on this day, as he had been unprepared to answer many questions the previous day and the Chairperson earnestly desired clarity on the questions posed. It seemed to him that Mr Masilela had not applied his mind to the matters previously raised by the Committee, and this was a severe obstacle to the passage of the Bill. He then allowed for reflection and deliberation on the previous day’s meeting.

Mr V Ndlovu (IFP) agreed that the Defence Secretary had been unprepared. In the light of government’s aim to have one civil service, there was no indication that the Defence Secretary had engaged with the Public Service. The right of the Minister of Defence to determine salaries in conjunction with the Public Service Commission and the Minister of Finance seemed to him to ignore constitutionally-laid down structures. The unclear overlap of roles concerning the Inspector General (IG) and the Defence Secretary, as also the Auditor General (AG), also raised problems for implementation. To his mind, it would not be practical to have the IG reporting to the Defence Secretary and the Chief of the South African National Defence Force (SANDF).

Mr M Shah (DA) echoed Mr Ndlovu’s concerns, adding that the Auditor General did not have the depth of knowledge to report on SANDF matters, necessitating a role for a person such as the IG. He also agreed that the structures proposed by the Bill were not capable of being implemented and that the jurisdiction of the IG remained undefined.

The Chairperson suggested that the legal representatives and IG were of the opinion, as was also implied in the memorandum to the Bill, that there were no real impediments to passing the bill.

Dr Mary Ledwaba, Chief Director of Human Resources Policy and Planning, Department of Defence, repeated the contents of Section 55 of the Act, which were pertinent to the discussion. She also noted that Section 82 (b) of the Public Service Act also made provision for similar functions. Thus, the Ministers of Defence, Public Service and Finance were previously empowered to consult in terms of making a determination for members of the SANDF. This was to the exclusion of Senior Management Service (SMS) members, who were deemed to be employers.

Mr V Ntuli (ANC) raised his concern, relating to clause 10(b) and (d) of the Bill, that internal auditing should be done as a matter of course in any organisation. He believed that the IG was merely duplicating an existing role. He repeated his call that any legislation passed should recognise the uniqueness of the military by ensuring that they were represented by military associations on the Personnel Pay Review Board. He was adamant that the Committee was not ready to pass the Bill because the Department of Defence (DoD) needed to take on board these concerns, and take concrete steps to ensure that SANDF members were directly represented in the bargaining process.

Dr G Koornhof (ANC) pointed to the numerous unresolved questions, which neither the legal representatives, nor the officials of the DoD, had yet addressed. He conceded that the Reserve Force had been dealt with satisfactorily. However, the problem of how the IG was effectively t0 investigate fraud in the Defence Secretariat had not been answered by the Defence Secretary the previous day. The current bill took the Minister of Finance out of the loop of the bargaining process and this was problematic in terms of the Public Service Act. It remained unclear how the Minister of Defence could be empowered to address the question of scarce skills in the SANDF, how the IG could be mandated to monitor operational readiness, and why the unions could not be part of the bargaining process in some form. He concluded, on a grave note, that the management of the SANDF was also problematic, because the Military Bargaining Council (MBC), amongst other organs, was dysfunctional, demonstrating that they were not competent to implement legislation. The priority, therefore, should be given to improving the management before passing new legislation.

Mr N Fihla (ANC) was very firm that legislation should not be passed because of transient circumstances. It was imperative that any law made should be able to stand the test of time.

Mr K Motlante (ANC, new Committee Member), said that it was essential that there should be mechanisms to represent SANDF members’ concerns directly.

Mr M Booi (ANC) noted that the DoD had been aware of the need for this type of mechanism for a considerable time and had yet to address it. The proposed structure in the bill did not take into account the rest of the Public Service but it also did not recognise the uniqueness of the SANDF. The Personnel Pay Review Board itself, in terms of the Bill, would compromise the SANDF. Mr Booi expressed some frustration that he had personally asked for a clear job description of the IG but no new information had been forthcoming.

The Chairperson confirmed that he had received little response from the IG himself on his role, but in fairness these questions should have been answered by the Defence Secretary. The IG should not be put in the position of having to explain what his superiors could not. Consequently, the Chairperson gave the IG leave to recuse himself from the meeting. The IG duly did so.

Mr Booi then questioned why the Committee was being asked to change the statutory authority of the IG. The answer seemed rather sinister to him, as it had emerged that there were obvious tensions between the IG and the Military Police. When questioned as to this, however, the DoD denied the existence of any tension. Clearly, Mr Booi believed, this was a problem that should be dealt with directly, not by means of legislation.

Mr D Diale (ANC) agreed with the Committee that it was not ready to pass Bill.

Mr Shah added that the Committee should formalise its points of concern and instruct the DoD to give immediate attention to them. In addition he questioned the ability of a civilian to adequately fulfil the post of IG, and the capacity of the office given the budgetary constraints. He also asked whether or not the function of the IG had been performed in the past by a department within the DoD.

The Chairperson asked Dr Ledwaba how many IGs currently existed in the SANDF.

Dr Ledwaba replied that every service had an IG. If Intelligence had been added then there would be five arms of the SANDF.

Mr Ndlovu summed up the responses received to date from the DoD. He declared that they had nothing substantive to say at all. He continued that there were too many points of concern that had not been addressed to allow the Committee to pass the Bill in its current form. A total redrafting was required.

Mr Booi, referring to the memorandum attached to Page 6 of the Bill, suggested that the declaration that all constitutional implications had been considered was untrue. Not even the implications of the Public Service Act had been adequately considered, which raised the possibility that the DoD was misleading the Committee.

Mr Ntuli raised a final concern that paragraph 2.3 in the Memorandum to the Bill could not be correct, as an internal audit should be done by the Chief Financial Officer, otherwise he or she would not be performing their function.

The Chairperson expressed the urgent need to meet the Defence Secretary and Chief of Defence in the next round of deliberations. The Chairperson concluded that the fact that the plight of SANDF members and the efficacy of SANDF management remained unresolved had prompted him to request a closed briefing on these matters specifically. He agreed that the Bill would have to be re-tabled. The Committee Members would have to consider two bills in the next session, as the National Conventional Arms Control legislation was next on the agenda.